## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE**
**TUESDAY, THE 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941**
## **WP(C).No.27047 of 2018**
## **PETITIONER/S:**
- **1 P.HASSAN HAJI, AGED 70 YEARS, S/O. KUNHEETHUKUTTY, PARAPPAN HOUSE, VENNIYUR PO, TIRURANGADI, MALAPPURAM DISTRICT, PIN-676508.**
- **2 SHAHINSHAD, AGED 30 YEARS, S/O ABDULLA KUTTY, 415, MANIPARMBATH, TIRURANGADI-676508.**
- **3 ABDULSALAM, AGED 51 YEARS, S/O. KUNJEEDUTTY, 585, KUTHIRAVATTATH, THIRURANAGADI-676508.**
- **BY ADVS. SRI.S.VINOD BHAT KUM.ANAGHA LAKSHMY RAMAN SRI.LEGITH T.KOTTAKKAL**
## **RESPONDENT/S:**
- **1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, NEW DELHI-110001.**
- **2 DEPUTY COLLECTOR AND COMPETENT AUTHORITY, L.A N.H (17/66), MALAPPURAM, KOTTAKKAL P.O., PIN676503.**
- **3 THE NATIONAL HIGHWAY AUTHORITY OF INDIA REPRESENTED BY ITS CHIEF ENGINEER, REGIONAL OFFICE, KOZHIKODE.**
- **4 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM695001.**
**BY ADVS. M/S.M.V.KINI AND CO., SC, NHAI PREMLATHA.K.NAIR** GOVERNMENT PLEADER, SRI.RAJASEKHARAN NAIR
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**WP(C).No.27047/2018 2**
## **JUDGMENT**
The petitioners challenge decision of the competent authority under Section 3C of the National Highways Act, 1956 (for short, the Act). Ext.P1 is the order of the competent authority. Exts.P3 and P4 are the objections raised in time. Ext.P6 is the additional objection. The main objection was in regard to the alignment fixed. This objection appears to have been considered after obtaining remarks from the National Highways Authority of India (for short the “NHAI”). In view of the fact that no change can be effected on alignment, the objection was overruled. This decision of the competent authority under Section 3C of the Act is under challenge in this writ
petition.
2. The learned counsel for the petitioners
argued _in extenso_ and submitted that there is no
consideration of any of the objections raised by the petitioners before the competent authority. It
**WP(C).No.27047/2018 3**
is argued that the competent authority is bound to consider their objections on merit. The main objection appears to be in regard to a Graveyard attached to the Mosque. According to the
petitioners, based on the manual prepared by the NHAI, the religious structures will have to be spared from the acquisition. It is argued that if it is required for acquisition, reasons must be stated why the religious structures, cannot be spared from acquisition. Therefore, it is argued that the competent authority failed to consider
these objections in the right perspective.
3. In regard to the scope of hearing the
objections, the learned Standing Counsel for the NHAI would submit that the scope of hearing
objections is limited. The power of the State to acquire land belonging to private persons is absolute in the light of the doctrine of eminent
domain. It is argued that the hearing of objections in regard to the use of the land is restricted within the ambit of Section 3A(1), that is to say,
**WP(C).No.27047/2018 4**
the objection can be only by pointing out that it is not related to any purpose as mentioned under Section 3A and, therefore, the competent authority cannot hear any objections based on the alignment fixed by the NHAI. The learned Standing Counsel placed reliance on the judgment of the Apex Court in **Union of India v. Kushala Shetty [(2011) 12 SCC 69** ], wherein the Apex Court, after adverting to the
procedure for acquisition for the National Highway, held in paragraph-24 as follows:
“NHAI is a professionally managed statutory body having expertise in field of development and maintenance of national highways. Courts on other hand are not equipped to decide viability and feasibility of particular project and whether particular alignment would subserve larger public interest. Thus, scope of judicial review is limited in such a situation. Court can nullify acquisition of land in rarest of rare cases if it is found ex facie contrary to law or tainted due to _mala fides._ In instant case neither was any violation of mandate of the 1956 Act established nor was charge of malice proved. Hence, impugned order set aside and acquisition restored”.
## **WP(C).No.27047/2018 5**
4. The administrative authority's wisdom in fixing the alignment cannot be subjected to a judicial scrutiny. Experts having expertise, decides the alignment. There may be objection from different corners by different land holders in different manners. The set of procedures followed by the administrative authority have been stated in the counter affidavit filed by the third respondent. These procedures clearly would show that apart from the technical feasibility in fixing the alignment, they also take into account the public concern regarding the fixation of alignment. It is also stated in the counter affidavit at para.15 that before considering the stretch of alignment, suggestions and opinions of the District Administration and Local Elected Representatives were considered. It is also stated that the Detailed Project Report of Consultant is also placed before the State Government for approval. Therefore, it is noted that before approval of the alignment, due consideration has been given to all
**WP(C).No.27047/2018 6**
aspects related to it. Even this Court cannot issue a mandamus to the Administrative Authority to consider shifting of alignment as the fixation of the alignment is purely within the realm of NHAI. In such circumstances, the scope of hearing the objections is limited as rightly pointed out by the learned Standing Counsel for the NHAI.
5. There are no orders passed to the effect that religious structures cannot be acquired for the purpose of land acquisition. The power of eminent domain would enable the State to acquire a religious structure as well. Therefore, NHAI can fix such alignment by including the religious structures as well. It is for the authority to
decide in what manner the alignment will have to be fixed. The competent authority, therefore, cannot act as an appellate authority to hear the
objections regarding the alignment. As already
noted, once an alignment is fixed, it is not open for the competent authority or this Court to change it in accordance with the requirement of the land
**WP(C).No.27047/2018 7**
holders. Therefore, the scope of objection is limited only to consider those aspects related to Section 3A (1) of the Act. That is to say, the aspects such as, if it is being used for the purpose not connected with any matters referred in Section 3A(1) and also when there is no description of the land under Section 3A(2) of the Act. In the light of the above discussions, the writ petition is only to be dismissed. Accordingly, it is
dismissed. No costs.
## **Sd/-**
## **A.MUHAMED MUSTAQUE**
**JUDGE**
ln
**WP(C).No.27047/2018 8**
## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
- **EXHIBIT P1 COPY OF THE ORDER NO.B-500/17/XII/191 DATED 28.6.2018 OF THE 2ND RESPONDENT.**
- **EXHIBIT P2 COPY OF THE SKETCH. EXHIBIT P3 COPY OF THE OBJECTION DATED 26.3.2018. EXHIBIT P4 COPY OF THE OBJECTION DATED 22.03.2018.**
- **EXHIBIT P5 COPY OF THE LETTER NO.37/TGDI DATED 22.3.2018 ISSUED BY THE 2ND RESPONDENT.**
- **EXHIBIT P6 COPY OF THE ADDITIONAL OBJECTIONS MADE BY THE PETITIONERS.**
- **EXHIBIT P7 COPY OF THE NEW ALIGNMENT PLAN PROPOSED BY THE PETITIONERS.**
- **EXHIBIT P8 COPY OF THE ORDER DATED 11.5.2018 IN WP(C) NO.15363/2018 OF THE HIGH COURT OF KERALA.**
- **EXHIBIT P9 COPY OF THE COUNTER AFFIDAVIT FILED BY THE 3RD RESPONDENT IN WP(C)28977/2009 OF THE HIGH COURT OF KERALA.**
- **EXHIBIT P10 COPY OF THE SATELLITE SKETCH SHOWING THE PRESENT ACQUISITION PLAN.**
- **EXHIBIT P11 COPY OF THE SATELLITE SKETCH SHOWING THE PRESENT ALIGNMENT OF NATIONAL HIGHWAY AVOIDING PERUMCHINA JUMA MASJID.**
- **EXHIBIT P12 COPY OF THE SATELLITE SKETCH SHOWING THE PRESENT ALINGMENT OF NATIONAL HIGHWAY AVOIDING VELLIMUKKU JUMA MASJID.**
- **EXHIBIT P13 PHOTOGRAPH. EXHIBIT P14 COPY OF ACQUISITION PLAN AVOIDING THE JARAM.**
- **EXHIBIT P15 COPY OF THE SPEECH RENDERED BY HON'BLE MINISTER FOR PUBLIC WORKS DEPARTMENT.**
**WP(C).No.27047/2018 9**
**EXHIBIT P16 COPY OF THE LETTER DATED 11.07.2018 SENT BY THE 1ST PETITIONER.**
**EXHIBIT P17 COPY OF THE LETTER DATED 11.07.2018 SENT BY KUNHIMOIDU.**
RESPONDENTS EXHIBITS:
EXHIBIT R3(A) : 3D NOTIFICATION S.O.3746(E) DATED 30.07.2018.
**EXHIBIT R3(B): NHAI/RO/KERALA/PIU KKD/28013/2016/214/DATED 08.04.2017.**
**EXHIBIT R3(C): FEEDBACL INFRA PRIVATE LTD.LETTER DATED 22.05.2018.**
**EXHIBIT R3(D): GOVERNMENT OF KERALA B1/535/2018-REV DATED 07.08.2018.**
**//TRUE COPY//**
**P.A.TO JUDGE**
